Florida Court Limits Privilege for Claim File Notes in Depositions
It is a situation that many attorneys and insurance professionals have encountered in the past. A plaintiff is deposing an adjuster, and the defense attorney states or asks to not waive privilege of claim file notes for the deponent to review them. Usually these notes contain the basic claim information needed for a deposition in addition to the confidential insurer’s mental impressions and claim determinations. Sometimes the claim notes will even include the entire special investigations diary. If careful attention is not paid to the plaintiff’s response, it just might so happen that all of those notes are now subject to discovery and the plaintiff’s review.
In 2024, the Florida’s Third District Court of Appeal, in Hamilton v. Citizens Property Insurance Corporation, 390 So.3d 700 (Fla. 3d DCA 2024), ruled that there is no such thing as a generic “claim file privilege” for a deponent to review the claim notes during a deposition. In the Hamilton case, Citizens Insurance actually obtained a protective order from the trial court for its corporate representative to review and rely on portions of its claim file during a deposition without waiving privilege or allowing the plaintiff to review the used materials. On certiorari review, the Third District reversed this order as a departure from the essential requirements of Florida law.
The appellate court found that the notion of a “claim file privilege” as carte blanche to use materials during testimony without providing an opportunity for the opposing party to review violated the Florida Evidence Code. The Third District specifically cited to Section 90.613 Fla. Stat. as basis for its ruling, which states:
"When a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce it, or, in the case of a writing, to introduce those portions which relate to the testimony of the witness, in evidence."
Section 90.613, Fla. Stat. (2023).
This section is commonly referred to as refresh recollection and is often used when a witness cannot remember helpful information, such as basic date, time, and location details. Without § 90.613, Fla. Stat., there is no ability for a witness to aid their testimony by reviewing documentation during a deposition. The Third District specifically ruled the “statute is clear and unambiguous: if a witness, during his or her deposition testimony, relies on a written document to refresh his or her recollection, those portions of the document that relate to the witness’s testimony must be produced to the opposing party, resulting in a waiver of an otherwise applicable privilege.” Id. (Citing to Soler v. Kukula, 297 So. 2d 600, 601-02 (Fla. 3d DCA 1974).
The Appellate Court grants certiorari jurisdiction, essentially immediate review, to review the protective order because there would be “no practical way to determine after judgment what the testimony would be or how it would affect the result” at a trial. As such, an insurer’s attempt to rely on such privilege in a deposition and to refuse to follow § 90.613, Fla. Stat., would result in an swift reversal. The court did note that the only exception recognized for § 90.613 is for relevance. Even so, if challenged, the materials would be subject to an in camera review by the trial judge. While the irrelevant information may be removed, the privileged litigation material would remain waived.
The practical considerations of the Hamilton v. Citizens opinion are readily apparent. Insurance professionals should take care to not have sensitive or confidential information before them when being deposed, even if the information is part of a larger file being used to recollect specific facts of the case. Pre-writing basic claim background information on to a separate document may be the best manner to exclude privileged material from ever being incidentally disclosed in a deposition.
While great in consequence, the Third District’s opinion also provides an excellent instructional guide on how to keep sensitive information protected for all parties.
*Sean is an associate in our Fort Lauderdale, FL office and a member of the Insurance Fraud/SIU Practice Group. (813) 989.1814 | SPGreenwalt@mdwcg.com
SIU Spotlight, Issue 2, Vol. 1, March 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.